The
Defendant, Chastity Coleman, entered into a plea agreement
with the State with an agreed-upon sentence. During the plea
colloquy, the trial court invited and met with the Defendant
outside the presence of the prosecutor and trial counsel
after which the court decided to reduce the Defendant's
period of incarceration. The State appeals. We conclude that
we have jurisdiction to review the trial court's
judgments under Tennessee Rule of Appellate Procedure 3. We
further conclude that the trial court committed three errors
that each independently require reversal: (1) the trial court
acted improperly by engaging in ex parte
communication with the Defendant; (2) the trial court erred
in failing to rule on the State's motion to recuse while
continuing to hear matters involving this case; and (3) the
trial court lacked the authority to unilaterally modify the
plea agreement. Because the trial judge has predetermined the
sentence to be imposed, we remove the trial judge from
further consideration of this case. We vacate the judgments
and remand for further proceedings consistent with this
opinion.

John
Everett Williams, J., delivered the opinion of the court, in
which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

OPINION

JOHN
EVERETT WILLIAMS, JUDGE

FACTUAL
AND PROCEDURAL HISTORY

The
Defendant was charged with multiple drug-related crimes in
multiple indictments. In indictment 12866, the Defendant was
charged with unlawful possession of drug paraphernalia
committed on July 13, 2015. In indictment 13022, the
Defendant was charged with five offenses committed on January
9, 2015: possession of 0.5 grams or more of cocaine with
intent to sell; possession of less than 14.175 grams of
marijuana; possession of hydrocodone with intent to sell;
introduction of contraband into a penal institution; and
possession of drug paraphernalia. The five-count indictment
13022 was a superseding indictment which took the place of a
prior indictment charging all of the crimes in indictment
13022 as well one count of the sale of less than 0.5 grams of
cocaine in a school zone, which the record indicates took
place on December 31, 2014.

The
Defendant entered into a plea agreement with the State. Under
the agreement, the Defendant was to plead guilty to two of
the offenses in indictment 13022: possession of 0.5 grams or
more of cocaine with intent to sell and introduction of
contraband into a penal institution. The other three counts
of indictment 13022, as well as the charge in indictment
12866, were to be dismissed by the State. As part of the
agreement, the Defendant was also to plead guilty to an
additional charge of delivery of less than 0.5 grams of
cocaine. This charge was to be brought by criminal
information in place of the offense originally charged in the
preceding indictment as the sale of less than 0.5 grams of
cocaine in a school zone. The recommended sentences were to
be ten years for the possession of cocaine with intent to
sell, three years for introduction of drugs into a penal
institute, and three years for the sale of under 0.5 grams of
cocaine. The Defendant was to serve one hundred and twenty
days of each sentence in prison on weekends and to serve the
remaining time on probation, and all sentences were to be
served concurrently.

On
August 9, 2016, the parties came to court to finalize the
agreement. The Defendant waived her right to indictment by a
grand jury in the delivery of cocaine charge. The trial court
then went over the terms of the plea agreement with the
Defendant. The trial court determined that the Defendant was
not under the influence of drugs or alcohol and reviewed the
Defendant's right to plead not guilty, to insist on a
jury trial, to call witnesses and cross-examine the
State's witnesses, and to refrain from incriminating
herself. The trial court informed the Defendant that if the
court chose to "accept the paperwork today … it
ends here." The trial court elaborated, "You
understand there will be no further trials, no hearings, and
no appeal of these cases?" The Defendant confirmed that
she understood that the entry of the pleas would settle the
cases. The trial court asked the Defendant if she was guilty
of the charges and if she gave up her right to a jury trial,
and the Defendant answered in the affirmative.

The
trial court then asked the Defendant if she was satisfied
with her counsel's performance and if there was
"anything at all you want to discuss with me privately
about that." The Defendant responded that she wished to
avail herself of the private discussion with the judge, and
the trial judge, Defendant, and court reporter went into the
judge's chambers outside the presence of the prosecutor
and defense counsel. The discussion in chambers was
transcribed by the court reporter, who, according to a motion
filed by the State, refused to release the transcript to the
prosecutor prior to obtaining the trial court's
permission, which was granted by order approximately a month
after the private conference, on September 6, 2016.

In
chambers, the Defendant expressed her belief that the State
was being "a little hard" on her considering that
these were her first felony charges. She told the judge that
she believed the State was retaliating because the Defendant
had not been able to give them information regarding a Mr.
Jimenez.[1] The Defendant told the judge that her
sentence would be a hardship on her because her daughter was
a senior in high school and the terms of her probation would
prevent her from attending various school events, including
graduation. She was also concerned that she might lose her
job as a supervisor in a local factory. She explained that
her job required mandatory overtime on weekends and that
missing the required time could lead to her dismissal. The
trial judge told the Defendant that an exception could be
made for her daughter's graduation. The judge then told
the Defendant that she could still withdraw from the plea.
The Defendant asked if that would mean going to trial, and
the judge affirmed that it would unless another settlement
could be reached. The judge informed the Defendant, "I
can't make them plea bargain, " and told the
Defendant that it was not the court's "role" to
make a recommendation regarding sentence. The judge and the
Defendant discussed pretrial jail credits and the feasibility
of the Defendant serving weekends in jail given her job
requirements. The transcript then notes, "A discussion
was held off the record."

The
judge and the Defendant finished conferring and subsequently
returned to court to continue the plea colloquy with the
attorneys present. The trial court began by asking the
Defendant whether she was satisfied with her attorney's
performance, whether her attorney had explained the elements
of each offense to her, and whether her attorney had informed
her of her exposure if she were convicted at trial of the
offenses to which she was pleading guilty, and the Defendant
responded in the affirmative.

The
State's attorney recited the factual bases for the
convictions. He stated that the January 9, 2015, offenses
resulted from a search warrant which revealed that the
Defendant had over one ounce of cocaine in her possession and
that the Defendant was taken to jail, where additional
cocaine was found on her person. The charge brought by
criminal information was based on the Defendant's
involvement with the sale of .42 grams of cocaine to a
confidential informant on December 31, 2014. Defense counsel
noted additionally that this last charge "could have
been a school zone case that would have caused [the offense]
to be a B felony in the eight to twelve range with a required
minimum service of eight years" but that the State had
agreed to bring a criminal information consistent with the
offense to which the Defendant was pleading guilty.

The
trial court found that the pleas had a factual basis,
informed the Defendant of the consequences of a felony
conviction, and questioned her on the record regarding her
employment situation. Then the following discussion took
place:

THE COURT: And I want to knock it down to 90 days, instead of
120, for this first offender. I understand there's some
serious charges here; however, she's doing so well I
don't want to risk her losing that job on the weekends.
So I would accept 90 days, credit for time served, the rest
on consecutive weekends. That's what I want to approve.

[PROSECUTOR]: Well, Your Honor, the State's not going to
be willing to go forward with that. We -

THE COURT: Well, that's fine. I'll set it for trial,
and if she's convicted that would be her punishment.

The
court asked defense counsel for his "position, "
and he responded that while he thought the disposition was
"a bit stiff, " the Defendant had preferred the
option that would allow her to keep her job rather than
"run the risk of going to trial and maybe get convicted
of a case that would have mandatory prison time at a minimum
of eight years." The trial court noted its belief that
the State was retaliating for the Defendant's refusal to
help with the conviction of Mr. Jimenez, and the prosecutor
protested that this belief was inaccurate. The court
concluded, "[T]his Judge will not accept 120 days for
this defendant."

At the
conclusion of the hearing, then, it appeared that the trial
judge had chosen to reject the plea agreement as too harsh on
the Defendant. The day after the hearing, the State withdrew
the criminal information and sought a new indictment,
indictment number 13272, in which it charged the Defendant
with the sale of cocaine in a school zone. Faced with the
possibility of going to trial on this charge, the Defendant
filed a motion to "finalize" her plea, arguing that
the plea was not one with a negotiated sentence and that the
trial court could properly alter it. The State, after
requesting the transcript of the ex parte hearing,
filed a motion asking the trial judge to recuse herself. The
State asserted that the judge had violated certain Rules of
Judicial Conduct, that the judge erred by considering
evidence presented outside the court, and that the judge was
no longer impartial.

The
court, addressing these motions at a hearing on December 20,
2016, was swayed by the Defendant's argument that the
agreement did not contain a negotiated sentence, and it
determined that it had the authority under Tennessee Rule of
Criminal Procedure 11 to modify the plea agreement. The court
noted that it had previously "completed that acceptance
of the plea agreement with that modification, " and
defense counsel agreed that the court did not need to recite
the terms of the plea or make sure that the Defendant
understood her rights because the court had already done so
at the previous hearing. The Defendant was then placed under
oath, recited her understanding of the revised agreement, and
testified regarding the overtime requirement at her job. When
the Defendant broached the subject of seeking an exception to
go to church, the prosecutor left the courtroom. The trial
court requested the prosecutor to return "as a
courtesy" and to sign the revised plea agreement as to
form, and the prosecutor did so. The trial court then
formally accepted the plea, as altered. The prosecutor noted
that the State was objecting "not so much" to the
reduction of thirty days as to the fact "that the Court
gleaned much of its information from the ex parte
communication with [the Defendant] privately in chambers,
" and that the court was unilaterally amending the
charge related to the sale of drugs in a school zone. The
prosecutor ultimately signed the form, "approved as to
form as instructed
requested[2] by the Court." The judge declined to
rule on the motion for recusal, instead concluding that, if
her decision were reversed on appeal, then she would
"probably … recuse" herself. The State filed
a timely appeal.

ANALYSIS

On
appeal, the Defendant contends that the State has no appeal
as of right from the trial court's decision and that this
court therefore lacks jurisdiction to consider the matter.
The Defendant argues in the alternative that the trial court
had the authority to modify the sentence because the plea
agreement did not contain an agreed-upon sentence, but only a
sentencing recommendation. The State counters that this court
has jurisdiction and that the trial court acted improperly in
holding an ex parte meeting with the Defendant, in
basing the sentencing decision on this meeting, and in
altering a plea agreement that contained an agreed-upon
sentence.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;I.
...

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